J-S42025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MICHAEL O. ROBERTS PALADINO Appellant No. 1468 WDA 2015

Appeal from the Judgment of Sentence July 29, 2015 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000437-2015
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J. * MEMORANDUM BY OTT, J.: FILED JUNE 09, 2016 Michael O. Roberts Paladino appeals from the judgme nt of sentence imposed on July 29, 2015, in the Court of Common Pl eas of Beaver County. 1,2 On April 14, 2015, Roberts Paladino pleaded guilt y to charges of sexual abuse of children – distribution of child po rnography (3 counts),

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Roberts Paladino purports to appeal from the August 26, 2015, order denying his post-sentence motion. We have corrected the caption to reflect that Roberts Paladino’s appeal properly lies from t he judgment of sentence imposed on July 29, 2015. Commonwealth v. Dreves , 2003 PA Super 503, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) ( en banc ).

2 On November 4, 2015, this Court issued a per curiam order, directing compliance with Pa.R.A.P. 3517 (filing of docketing statement). Thereafter, on November 25, 2015, this Court dismissed this app eal for failure to file a docketing statement. Counsel then sought reinstate ment of the appeal, which this Court granted on December 14, 2015.J-S42025-16

- 2 -

sexual abuse of children – possession of child porn ography (10 counts), and criminal use of communication facility. 3 On July 29, 2015, the trial court held an assessment hearing, found Roberts Paladino to be a Sexually Violent Predator (SVP), and sentenced Roberts Paladino to 3 0 to 84 months’ incarceration, and seven years’ probation. On Augu st 13, 2015, Roberts Paladino filed a post-sentence motion challenging h is sentence that fell beyond the aggravated range of the sentencing guide lines. 4 The trial court denied the motion on August 26, 2015, and Roberts P aladino filed a notice of appeal on September 18, 2015. Thereafter, counsel filed Roberts Paladino’s brief on appeal as an Anders 5 brief. As will be discussed below, we remand for counsel to file, within 30 days of the date the record is transmitted to the trial court, either (1) a Pa.R.A.P. 1925(b) stateme nt of matters complained of on appeal, in which case the trial court is dire cted to file a Rule 1925(a) opinion within 30 days thereafter, and counsel must file an advocate’s brief with this Court within 30 days of the filing of the trial court’s opinion, or (2)

____________________________________________ 3 18 Pa.C.S. §§ 6312(c), 6312(d), and 7512(a), respe ctively.

4 In part, Roberts Paladino’s post-sentence motion s tates: “It is the position of [Roberts Paladino] that the Court’s sentence of 30 months to 84 months on Counts 1, 2, and 3 unlawfully extend the minimum sentence beyond the standard and aggregate range.” Roberts Paladino’s Post-Sentence Motion, 8/13/2015, at ¶4.

5 Anders v. California , 386 U.S. 738 (1967); see also Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981).J-S42025-16

- 3 -

a statement of intent to file an Anders brief, pursuant to Rule 1925(c)(4), in which case the trial court may decide whether an op inion is necessary or immediately transmit the record back to this Court; counsel must also file with this Court within 30 days thereafter a petitio n for leave to withdraw from representation evidencing compliance with noti ce requirements for withdrawal; and counsel must amend the Anders brief to include a Rule 2119(f) statement. Before we address counsel’s Anders brief, we must consider whether this appeal is timely. We lack jurisdiction to consider untimely appeals, and we may raise such jurisdictional issues sua sponte. See Commonwealth v. Burks , 102 A.3d 497, 500 (Pa. Super. 2014). As already noted, sentencing occurred on July 29, 2 015. Roberts Paladino filed his post-sentence motion on August 1 3, 2015, after the 10- day period provided for filing a post-sentence moti on. See Pa.R.Crim.P. 720(A)(1). 6 As such, the post-sentence motion was untimely. With regard to the effect of a post-sentence motion on the timeli ness of an appeal , this Court has explained: In cases where no post-sentence motions (or Commonw ealth’s motions to modify sentence) are filed, a defendant must file an appeal within 30 days of imposition of sentence in open court. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a d efendant files

____________________________________________ 6 Rule 720(A)(1) provides: “Except as provided in p aragraphs (C) and (D), a written post-sentence motion shall be filed no late r than 10 days after imposition of sentence.”J-S42025-16

- 4 -

a timely post-sentence motion, the appeal period does not begin to run until the motion is decided. Pa.R.Crim .P. 720(A)(2); Pa.R.A.P. 903(a). Except in circumstances not appli cable here, a defendant must file a post-sentence motion within t en days of imposition of sentence. Pa.R.Crim.P. 720(A)(1).
An untimely post-sentence motion does not toll the appeal period. Commonwealth v. Green , 2004 PA Super 433, 862 A.2d 613, 618 (Pa. Super. 2004) ( en banc ) (“[T]he time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely po st-sentence motion.”). **** Under Commonwealth v. Dreves , 2003 PA Super 503, 839 A.2d 1122, 1128 (Pa. Super. 2003) ( en banc ), a post-sentence motion nunc pro tunc may toll the appeal period, but only if two conditions are met. First, within 30 days of imposi tion of sentence, a defendant must request the trial court to consider a post-sentence motion nunc pro tunc . “The request for nunc pro tunc relief is separate and distinct from the merits of the underlying post-sentence motion.” Id . at 1128-29. Second, the trial court must expressly permit the filing of a post-sentence motion nunc pro tunc , also within 30 days of imposition of sentence. Id . at 1128 & n.6. “If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor extended.” Id . at 1128. Moreover, “[t]he trial court’s resolution of the merits of the late post-sentence motion is no substitute for an order expressly gran ting nunc pro tunc relief.” Id . at 1129.
Commonwealth v. Capaldi , 112 A.3d 1242, 1244 (Pa. Super. 2015) (emphasis in original). Here, because Roberts Paladino’s post-sentence moti on was untimely, it did not extend the 30-day appeal period from the July 29, 2015 judgment of sentence. See Calaldi, supra , citing Green . Moreover, Roberts Paladino’s motion cannot be regarded as a post-sent ence motion nunc proJ-S42025-16

- 5 -

tunc since the motion provided no explanation for the l ate filing and did not request the trial court to consider the motion nunc pro tunc. In addition , the trial court did not expressly grant nunc pro tunc relief and, therefore, its decision on the merits does not qualify as an order expressly granting the right to file a post-sentence motion nunc pro tunc

. The record, however, reveals extraordinary circumst ances exist here that excuse Roberts Paladino’s late filing of the a ppeal. In Commonwealth v. Patterson , 940 A.2d 493, 499–500 (Pa. Super. 2007), this Cou rt held that a breakdown in the court’s operation occurred where the trial court denied the defendant’s untimely post-sentence motio n within the appeal period, but failed to apprise him he still had 15 d ays to file an appeal. Here, as in Patterson , the trial court’s August 26, 2015, order denying Roberts Paladino’s untimely post-sentence motion was filed before the expiration of the 30-day appeal period, and “did not notify [a]pp ellant that, due to the late filing of his post-sentence motion, he had to file an appeal within thirty days of the imposition of sentence.” Patterson, supra at 499. See Order, 8/26/2015. 7 Therefore, we are constrained to find that “a cou rt breakdown occurred,” id. , and will not quash this appeal.

____________________________________________ 7 The trial court’s order denying Roberts Paladino’s post-sentence motion states: AND NOW, this is hereby Ordered and Directed that t he Motion is denied. [Roberts Paladino] understood when he ente red his guilty pleas that he was exposed to 98 years[’] inc arceration on (Footnote Continued Next Page)J-S42025-16

- 6 -

At the outset of our review, however, we detect num erous areas of concern that are cause for remand prior to further review, namely, counsel’s failure to preserve issues for appeal, counsel’s fa ilure to satisfy the requirements of Anders , and counsel’s failure to include a Pa.R.A.P. 2119 (f) statement in the Anders brief. We address these deficiencies sequentially

. First, counsel for Roberts Paladino failed to compl y with the trial court’s September 21, 2015, order to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Ru le of Appellate Procedure 1925(b). The trial court has opined that due to this omission “all issues are deemed waived.” Trial Court Order, 11/0 4/2015. It is well settled that a defendant’s failure to co mply with the court’s order to file a concise statement in compliance wit h Rule 1925 generally results in waiver of all issues on appeal. See Commonwealth v. Lord , 719 A.2d 306 (Pa. 1998); Commonwealth v. Castillo , 888 A.2d 775 (Pa. 2005). However, where a criminal defendant’s issue s are waived on direct appeal under Lord due to his attorney’s failure to file a Rule 1925( b) statement, it is presumed that the defendant suffer ed per se ineffectiveness. Castillo, supra at 780. In this regard, Rule 1925 provides:

(Footnote Continued) _______________________ these 14 separate counts. The sentence imposed was not “unlawful” as the motion suggests. Order, 8/26/2015.J-S42025-16

- 7 -

If an appellant in a criminal case was ordered to f ile a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appel late court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge. Pa.R.A.P. 1925(c)(3). Pursuant to the recent amendments to Rule 1925, if counsel intends to submit an Anders brief, the proper procedure is provided in Pa.R.A. P. 1925(c)(4). Therefore, at the time the trial court issued its order to file a concise statement, counsel could have either (1) co mplied with the court’s order and filed a Rule 1925(b) statement, or (2) fi led a statement of intent to file an Anders brief. Here, counsel’s failure to file a Rule 1925 statement constitutes per se ineffectiveness and deprives Roberts Paladino of meaningful review of his appeal. Under these circumstances, the most effective means to restore a defendant’s rights on appeal is to remand for couns el to comply with the court’s Rule 1925(b) order. See Commonwealth v. McBride , 957 A.2d 752 (Pa. Super. 2008) (where counsel failed to file court-ordered Pa.R.A.P. 1925(b) statement and filed a brief pursuant to Anders , remand required for filing of concise statement followed by prepara tion of trial court opinion or a statement of intent to file an Anders brief in lieu of filing a concise statement). Therefore, we must remand for either:J-S42025-16

- 8 -

(1) Counsel’s filing of a concise statement nunc pro tunc and the preparation of an opinion by the trial court, 8 to be followed by counsel’s filing of an advocate’s brief in this Court, or (2) Counsel’s filing of a statement of intent to file a n Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Secondly, we note that Roberts Paladino’s counsel h as not complied with the requirements of Anders

. “When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdr aw.” Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) ( en banc ). Pursuant to Anders and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), the procedural requirements counsel must satisfy in requesting to withdraw from representation are, as follows: Counsel must: 1) petition the court for leave to wi thdraw stating that, after making a conscientious examination of t he record, counsel has determined that the appeal would be fri volous; 2) furnish a copy of the brief to the defendant; and 3 ) advise the defendant that he or she has the right to retain pr ivate counsel or raise additional arguments that the defendant deems worthy of the court's attention. Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) ( en banc ) (citation omitted). Substantial compliance with t hese requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa. Super. 2007).

____________________________________________ 8 See Pa.R.A.P. 1925(b), (c)(3).J-S42025-16

- 9 -

Santiago further requires that counsel’s Anders brief must: (1) provide a summary of the facts and procedural h istory, with citations to the record; (2) refer to anything in t he record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding the appeal is friv olous. Counsel should articulate the relevant facts of record, con trolling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Cartrette, supra at 1032 (citation omitted). Further, counsel must provide a copy of the Anders brief and petition to withdraw to his client, together with a letter t hat advises his client of the right to: (1) retain new counsel to pursue the appeal; (2) pr oceed pro se on appeal; or (3) raise any points that the appella nt deems worthy of the court[’]s attention in addition to th e points raised by counsel in the Anders brief. Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotations and citation omitted). See also Commonwealth v. Millisock , 873 A.2d 748, 751–752 (Pa. Super. 2005) (“[ T]he prudent course is to require counsel henceforth to attach to their petit ion to withdraw a copy of the letter sent to their client advising him or her of their rights. Such a requirement ensures proper notification to the clie nt and relieves this Court of having to make any assumptions..., a burden inap propriate for a reviewing court .”). Instantly, although counsel has filed an Anders brief, there is no separate petition to withdraw. We recognize we may treat counsel’s requestJ-S42025-16

- 10 -

in the Anders brief itself as such a request. See Commonwealth v. Fischetti , 669 A.2d 399 (Pa. Super. 1995). (explaining “the more desirable practice would be to submit a separate withdrawal r equest to the court”). We also note the Anders brief certificate of service indicates that the Anders brief was mailed to Roberts Paladino by U.S. first class mail. However, there is no indication in the record or fi lings in this Court that counsel advised Roberts Paladino by letter that he had the right to proceed with newly retained counsel or pro se , or raise any points in addition to the points raised by counsel in the Anders brief. Therefore, counsel has not properly complied with the technical requirements o f Anders and its
progeny. Accordingly, if on remand counsel files a statement of intent to file an Anders brief in lieu of a concise statement, we direct cou nsel to file with this Court, within 30 days thereafter, a petition to wit hdraw from representation, including the appropriate documentation evidencing counsel’s compliance with the notice requirements discussed above. See Orellana, supra; Millisock, supra

. Next, we address the procedural aspects of counsel’ s Anders brief. Here, the Anders brief states that “[a]n appeal of the discretionar y aspects of a sentence which was the result of a negotiated plea agreement is patently frivolous.” Anders Brief at 10, citing Commonwealth v. Reichle , 589 A.2d 1140. This statement, however, has no app lication in this case,J-S42025-16

- 11 -

given that Roberts Paladino entered an open guilty plea. See Commonwealth v. Tirado , 870 A.2d 362, 368 n.5 (noting that “while a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his or he r sentence other than to argue that the sentence is illegal or that the sent encing court did not have jurisdiction, open plea agreements are an exception in which a defend ant will not be precluded from appealing the discretion ary aspects of the sentence”) (emphasis in original). Furthermore, although the Anders brief addresses “the legality of the sentence” imposed on Roberts Paladino, the discussi on is framed in terms of the trial court’s deviation from the sentencing gui delines. Anders Brief at
11. As such, this issue implicates the discretionary aspects of the sentence. See Tirado, supra (challenge to sentence outside the guidelines impl icates discretionary aspects of sentence). However, the Anders brief does not contain a separate statement of reasons relied upon for allowance of appeal, as required by Pa.R.A.P. 2119(f). We may review th is issue notwithstanding the absence of a Rule 2119(f) statement. See Commonwealth v. Lilley , 978 A.2d 995, 998 (Pa. Super. 2009) (examining the merits of a challenge to discretionary aspects of a sentence where counsel f ailed to include Pa.R.A.P. 2119(f) statement within an Anders brief). Nevertheless, since we are remanding this case, we instruct counsel, if he con tinues to proceed pursuant to Anders , to amend the Anders brief pursuant to Rule 2119(f).J-S42025-16

- 12 -

To summarize, we remand this case to the trial cour t with the following instructions:
I. Within 30 days of the date the record is transmitte d to the trial court, counsel for Roberts Paladino must file in th e trial court either (1) a Rule 1925(b) statement nunc pro tunc, or (2) a statement of intent to file an Anders brief, in accordance with Rule 1925(c)(4).
II. If counsel files a Rule 1925(b) statement, we direc t the trial court to file a Rule 1925(a) opinion within 30 days thereafter, and then promptly certify and retransmit the trial court record to this Court. Additionally, counsel must file an adv ocate’s brief with this Court within 30 days of the filing of the trial court’s opinion.
III. If counsel files a Rule 1925(c)(4) statement of int ent to file an Anders brief, the trial court may determine whether an op inion is necessary, and if not, promptly certify and tran smit the trial court record back to this Court. Additionally, if counsel files a Rule 1925(c)(4) statement, counsel must file in thi s Court within 30 days thereafter, a petition to withdraw from rep resentation and appropriate documentation evidencing compliance with the notice requirements for withdrawal, and an amended Anders brief that includes a Rule 2119(f) statement.J-S42025-16

- 13 -

Case remanded with instructions. Panel jurisdiction retained.